Punjab-Haryana High Court
Telu And Ors. vs Ram Kishan And Ors. on 7 May, 1997
Equivalent citations: (1997)117PLR390
JUDGMENT N.K. Kapoor, J.
1. This is plaintiffs' regular second appeal against the judgment and decree of the court below declining his prayer for rectification of the instrument which mistakenly record his share to be 38/112 instead of 48/112.
2. It is the case of the plaintiffs that they alongwith the contesting defendants purchased an area measuring 111 kanals 16 Marias being 3/15 share of land measuring 558 Kanals 19 marlas for consideration of Rs. 7,000/- by a registered sale deed dated 22.2.1960 . Purchasers- the plaintiffs as well as the defendants paid the consideration amount proportionate to their shares in the Property i.e. the plaintiffs paid for the share of 48/112 whereas the defendants paid the amount for their '-are of 64/112. However, in the revenue record the share of the plaintiffs was shown to be 38/112 whereas the defendants share was correctly recorded as 64/112. This way, there was a mutual mistake of parties to the sale caused by an error of the scribe, In fact, it did not express the real intention of the parties as regards the share of the plaintiffs and defendants 1 to 3. Hence the present suit.
3. Vendor in all fairness accepted the case set up by the plaintiffs. Defendants, however contested the suit stating that infact they have purchased 74/112 share and so the revenue record deserves to be corrected accordingly.
4. On the pleadings of the parties a number of issues were framed. Parties were permitted to adduce evidence. The trial Court on appraising the evidence found substance in the contention of the plaintiffs that infact they purchased 48/112 share of the land and so decreed the suit of the plaintiffs as prayed for.
5. Lower appellate court despite having come to the conclusion that the plaintiffs purchased 48/112 share out the land in dispute, declined the claim holding that suit has not been filed within the period of limitation.
6. The matter came up before this court for final disposal. My brother A.S. Nehra, J. vide judgment date 6.3.1991 dismissed the appeal holding that the suit was filed beyond the period of limitation.
7. Special leave petition was filed by the plaintiffs and the apex court in its Judgment dated 3.1.1996 accepted the same and remanded the case for reconsideration.
8. I have heard the learned counsel for the appellants as well as pursued the judgments and the order passed by the apex court. Plaintiffs contention that they have 48/112 share in the joint holding has been accepted by the trial court, the appellate court as well as by this court in its earlier judgment dated 6.3.1991. Otherwise too, on perusal of the evidence on record this contention of the appellants stands proved. Plaintiffs have been non-suited on the grounds that their claim is beyond limitation. The apex court while accepting the appeal has observed as under:-
"The only ground on which the High court non-suited the appellants was that their suit in terms of Article 59 of the Indian Limitation Act beyond Limitation as it ought to have been filed within 3 years when the facts entitling them to have the instrument or decree cancelled or set aside or the contract rescinded first became known to them. The said Article provides limitation of suits to cancel or set aside an Instrument or decree, or for the rescission of a contract. The High court, obviously fell into an error in not looking intrinsically to the nature of the suit when the sale instantly made was of a share of land by a set of vendors who were co-sharers and their coshareship was well drawn on the basis of the revenue records. It happened to be that in the sale-deed those shares were wrongly mentioned and it was on that basis that the subsequent mutation become faulty, requiring rectification. It was neither a case to cancel or set aside an instrument of decree nor was there any prayer of rescission of a contract. The dispute was mathematical to the extent of the land purchased which required to be reflected correctly in the sale-deed and the revenue records. The courts below brought in Article 59 of the Limitation Act, 1963 which did not apply to these facts, for this reason and this reason alone, we set aside the impugned order of the High Court and remit the matter back to it for reconsideration and for decision of the Regular Second Appeal on its own merit and on all the points as raised by the appellants. The Regular second Appeal shall merit priority of disposal as it originally did."
9. Prayer of the appellant-plaintiffs if not for cancelling of the document or setting aside of the same, the plaintiffs merely seek rectification of the error which has crept in the documents by the scribe i.e. wrongly mentioning their share to be 38/112 instead of 48/112. This error concededly came to the notice of the plaintiffs on 21.4.1970 and to get this error corrected suit was field in the year 1972 i.e. with in a period of limitation. Accordingly, I accept the appeal, set aside the judgement of the lower appellate court and affirm the judgment and decree of the trial court.
Parties to bear their own costs.